The California Dept. of Transportation has found a way to avoid Prop. 209. The Dept. filed for a federal grant that is unambiguously affirmative action. The grant requires the Dept. to hire specifc race and gender – specific based preferences in the transportation contracting business. The Secretary of Transportation must distribute 10 % of the funds to “disadvantaged business enterprises.”
AGC challenged the federal act on Equal Protaection grounds. According to the 9th Circuit, AGC must have standing to challenge this grant but the plaintiffs could not provide evidence that any of their members had been injured. This statement is absurd. By carving out specific groups for racial and gender preference the grant forecloses anyone else from particiating in bids on contracts. This judicial maxim is incomprehensible.
In order to pass the strict scrutiny test of the Fourteenth Amendment the applicant must establish evidence of impermissible discrimination. The Dept. expended tax money to conduct a test (that could have been used for other projects) evidencing discrimination. Of course the taxpayer lost. The court also agreed with the anecdotal evidence supplied by the Dept.
All of AGC’s objections were summarily disposed of by a court determined to undermine California law. Maybe the Supreme Court will reach a different conclusion in the absence of a rehearing in the 9th Circuit.